roberts motion for sumary dispostiion ninth circuit.pdf -

Please enable JavaScript to view the full PDF

(1 of 27) Case: 21-15562, 03/31/2021, ID: 12059196, DktEntry: 2-1, Page 1 of 9 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ANDREW NAMIKI ROBERTS, Plaintiffs-Appellants, v. AL CUMMINGS, in his Official Capacity as the State Sheriff Division Administrator; CLARE E. CONNORS, in her Official Capacity as the Attorney No. 21-15562 General of the State of Hawaii, Defendants-Appellees, and SUSAN BALLARD, in her Official Capacity as the Chief of Police of Honolulu County1, Defendant. PLAINTIFF-APPELLANT’S MOTION FOR SUMMARY DISPOSITION COMES NOW, Plaintiff-Appellant Andrew Namiki Roberts, and files this, his Motion for Summary Disposition pursuant to Circuit Rule 3-6, and would show the Court the following: BACKGROUND 1. Mr. Robert’s case was filed on April 2, 2018. In his Complaint for Declaratory and Injunctive Relief, Mr. Roberts alleged, inter alia, that the “State of Hawaii outlaws the private possession by Plaintiff of a Taser and stun gun within the state.” See ¶ 50, Defendant Ballard was dismissed in the district court on July 11, 2018. See 1 Docket No. 28. (2 of 27) Case: 21-15562, 03/31/2021, ID: 12059196, DktEntry: 2-1, Page 2 of 9 Docket No. 1. And that this prohibition on an “arm in common use” violates his Second Amendment rights. Id. at ¶ 76. 2. On December 17, 2018, an agreement was reached with Defendants to stay the matter pending legislation. See Exhibit “A”, Docket No. 41. That stay was lifted on April 29, 2019 after the Hawaii legislature failed to act. Docket No. 46. For purposes of this Motion, this agreed upon stay is not counted in the total number of involuntarily stayed days. 3. On August 2, 2019, Mr. Roberts filed his Motion for Summary Judgment (Docket Nos. 51, 52) and Defendants filed their Cross Motion for Summary Judgment on September 4, 2019 (Docket Nos. 54, 55). The matter was fully briefed and set for hearing. It was heard by the district court on November 26, 2019. 4. After the hearing, the district court stayed the proceedings pending a decision by the United States Supreme Court in New York State Rifle & Pistol Association, Inc. v. City of New York, No. 18-280. See Exhibit “B”. 5. New York Rifle was subsequently mooted by the United States Supreme Court on April 27, 2020. See New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S. ____ (2020). Immediately after that, Mr. Roberts moved the district court to lift the first court-imposed stay. 6. On June 17, 2020, the Court entered an Order continuing the stay: Pursuant to the issues raised before the Ninth Circuit Court of Appeals, the District Court elects to continue to STAY the proceedings in this case 2 (3 of 27) Case: 21-15562, 03/31/2021, ID: 12059196, DktEntry: 2-1, Page 3 of 9 pending the en banc decision by the Ninth Circuit Court of Appeals in Young v. State of Hawaii, No. 12-17808. In addition, the State of Hawaii represents that the Motions may become moot as “[t]here is now pending in the Hawaii State Legislature SB2292 which would repeal the total ban on electric guns and replace it with a regulatory scheme.” (Supplement at p. 3, ECF No. 77). The Court will instruct the Parties how to proceed following the en banc decision by the Ninth Circuit Court of Appeals in Young. See Docket No. 79, Exhibit “C”. 7. On July 27, 2020, Mr. Roberts filed his Motion to Lift Stay after the legislature again failed to act: Mr. Roberts’ rights have been and are continuing to be infringed. This matter has been stayed three times. The first, Mr. Roberts agreed to the stay to allow the legislature to act. The second stay was issued immediately after oral argument pending NYSRPA v. NYC, 140 S.Ct. 1525 (2020) in the Supreme Court which was subsequently mooted. The third stay was put in place pending Young, supra. Because the Hawaii legislature will not correct this issue, it is incumbent upon the Court to issue its ruling. See Docket No. 80, Exhibit “D”. Further, the Defendants stated in the conference of counsel pursuant to Local Rule 7.8, and reflected in Docket No. 80, that they would not oppose the relief requested in the motion. 8. Despite the Motion to Lift Stay and the Defendants not opposing the relief requested, the district court still denied Plaintiff’s Motion to Lift Stay. See Docket Nos. 81 & 82. 9. Then, this Court issued its en banc ruling in Young v. Hawaii, No. 12-17808, 2021 U.S. App. LEXIS 8571 (9th Cir. Mar. 24, 2021). 3 (4 of 27) Case: 21-15562, 03/31/2021, ID: 12059196, DktEntry: 2-1, Page 4 of 9 10. Immediately, Mr. Roberts filed, again, a Motion to Lift the Stay and re-urge his motion for summary judgment. See Docket No. 84, attached as Exhibit “E”. 11. The district court recognized that Young was decided by the en banc Court, but now decided that court will not resume until Young is “concluded” because one of Mr. Roberts’ attorney (also an attorney for Mr. Young) said he would seek review at the Supreme Court in Young in a news article contained in the Honolulu Star-Advertiser. See Docket No. 85, attached as Exhibit “F”. ARGUMENT The district court’s stay order should be summarily reversed and this cause remanded for further proceedings without delay. Mr. Roberts has been left out of court too long and his constitutional rights are being violated. The Ninth Circuit reviews “a district court's stay order for abuse of discretion, but this standard is ‘somewhat less deferential’ than the abuse of discretion standard used in other contexts.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1105 (9th Cir. 2005). (citation omitted). “Ordinarily, a stay order is not an appealable final decision.” Davis v. Walker, 745 F.3d 1303, 1308 (9th Cir. 2014). But, “because the already lengthy and indefinite stay puts [the plaintiff] ‘effectively out of court,’ the stay order on these facts ‘amounts to a dismissal of the suit’ and is reviewable as a final decision under § 1291.” Id. at 1308. “A ‘practical’ construction requires that when a plaintiff's action is effectively dead, the order which killed it must be viewed as final. Effective death should 4 (5 of 27) Case: 21-15562, 03/31/2021, ID: 12059196, DktEntry: 2-1, Page 5 of 9 be understood to comprehend any extended state of suspended animation.” Hines v. D'Artois, 531 F.2d 726, 730 (5th Cir. 1976). This is the precise issue here and because of this, the Court has jurisdiction under §1291. Mr. Roberts has had his case involuntarily stayed by the district court for over 490 days. And there is no end in sight because the district court has stayed Roberts’ matter pending the outcome of a non-related case which may or may not be appealed to the Supreme Court and then which may or may not be granted by the Supreme Court (which has extended deadlines to appeal and a petitioner now has up to 150 days to file a petition).2 This does not take into account the briefing, argument and waiting for the opinion that would issue from the Supreme Court if it did grant a potential petition in Young and does not taken into account if the Supreme Court remands Young for further proceedings at some such time in the future. “[L]engthy and indefinite stays place a plaintiff effectively out of court. Such an indefinite delay amounts to a refusal to proceed to a disposition on the merits.” Blue Cross & Blue Shield of Ala. v. Unity Outpatient Surgery Ctr., Inc., 490 F.3d 718, 724 (9th Cir. 2007). The district court’s stay orders and refusal to lift the stay even when the conditions of its stay orders have been satisfied have placed Mr. Roberts out of court. The district court continues to stay the matter pending some other condition precedent since November 26, 2019. First it was the Supreme Court’s resolution in New York 2 https://www.supremecourt.gov/orders/courtorders/031920zr_d1o3.pdf (last accessed 3/30/21). 5 (6 of 27) Case: 21-15562, 03/31/2021, ID: 12059196, DktEntry: 2-1, Page 6 of 9 Rifle. Then it was the Ninth Circuit’s en banc resolution in Young and that maybe the legislature would act a second time. Now it is the actual conclusion of Young which there is no way to know how long that will take. See Landis v. N. Am. Co., 299 U.S. 248, 257, 57 S. Ct. 163, 167 (1936) (“When once those limits have been reached, the fetters should fall off… [a]n order which is to continue by its terms for an immoderate stretch of time is not to be upheld as moderate because conceivably the court that made it may be persuaded at a later time to undo what it has done”). This Circuit has previously stated that “[w]e respect the trial court’s inherent power ‘to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel and for litigants’ and we give deference to the district court’s judgment that the stay will avoid hardship and inequity, but we ‘cannot abdicate our [role] . . . to prevent the ossification of rights which attends inordinate delay.’’) (citations and footnote omitted, alteration in original).” Hoeun Yong v. INS, 208 F.3d 1116, 1119 (9th Cir. 2000) (quoting Itel Corp. v. M/S Victoria U (Ex Pishtaz Iran), 710 F.2d 199, 202- 03 (5th Cir. 1983)). Hoeun, while a habeas case, is similar in the analysis because that case was stayed pending a resolution of a different case to the Supreme Court. The stay “term is indefinite … because the stay terminates upon the ‘resolution of the [Ma] appeal,’ if the Supreme Court should grant certiorari to review this court’s decision in Ma, the stay could remain in effect for a lengthy period of time, perhaps for years if our decision in Ma is reversed and the case is remanded for further proceedings.” Hoeun Yong v. INS, 6 (7 of 27) Case: 21-15562, 03/31/2021, ID: 12059196, DktEntry: 2-1, Page 7 of 9 208 F.3d 1116, 1119 (9th Cir. 2000). And this is no different than staying Mr. Roberts’ case pending a potential Supreme Court appeal in Young. 3 And what then happens if Young is remanded for further proceedings after the Supreme Court’s ruling? Given the district court’s order, since Young’s case would not be “concluded”, it is an indefinite stay. It is because of this continuous suspended animation, and changing what will end the stay, that Mr. Roberts has been left out of court. Mr. Roberts deserves to have his case adjudicated. The district court has abused its discretion, has committed clear error, and should be summarily reversed. CONCLUSION The Court should reverse the district court’s latest stay order and remand for further proceedings. Respectfully submitted, this the 31st of March, 2021. /s/ Stephen D. Stamboulieh Stephen D. Stamboulieh Alan Alexander Beck Stamboulieh Law, PLLC Law Office of Alan Beck P.O. Box 428 2692 Harcourt Drive Olive Branch, MS 38654 San Diego, CA 92123 (601) 852-3440 (619) 905-9105 [email protected] Hawaii Bar No. 9145 MS Bar No. 102784 [email protected] 3 See also fn. 2 of Hoeun: “… once a federal circuit court issues a decision, the district courts within that circuit are bound to follow it and have no authority to await a ruling by the Supreme Court before applying the circuit court's decision as binding authority…” Hoeun Yong v. INS, 208 F.3d 1116, 1119 n.2 (9th Cir. 2000). 7 (8 of 27) Case: 21-15562, 03/31/2021, ID: 12059196, DktEntry: 2-1, Page 8 of 9 CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing complies with the type-volume, typeface, and type-style requirements of Federal Rule of Appellate Procedure 27 because it contains 1,669 words and was prepared using Microsoft Word 365 in Garamond 14-point font, a proportionally spaced typeface. /s/ Stephen D. Stamboulieh Stephen D. Stamboulieh 8 (9 of 27) Case: 21-15562, 03/31/2021, ID: 12059196, DktEntry: 2-1, Page 9 of 9 CERTIFICATE OF SERVICE I hereby certify that on March 31, 2021, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I also hereby certify that the participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system. /s/ Stephen D. Stamboulieh Stephen D. Stamboulieh 9 (10 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT DocumentID: 4112059196, DktEntry: Filed 12/17/18 Page2-2,1 Page of 3 1PageID of 3 #: 286 RUSSELL A. SUZUKI 2084 Attorney General of Hawaii CARON M. INAGAKI 3835 JOHN M. CREGOR, JR. 3521 Deputy Attorneys General Department of the Attorney General, State of Hawaii 425 Queen Street Honolulu, Hawaii 96813 Telephone: (808) 586-1494 Email: [email protected] Attorneys for Defendants RUSSELL A. SUZUKI, Attorney General of Hawaii, and LT. ALBERT CUMMINGS III, State Sheriff (In Their Official Capacities) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ANDREW NAMIKI ROBERTS, CIVIL NO. CV18-00125 HG-KSC Plaintiff, STIPULATION TO STAY PROCEEDINGS and ORDER vs. SUSAN BALLARD, in her Official Capacity as the Chief of Police of Honolulu County, and RUSSELL SUZUKI, in his capacity as the Attorney General of the State of Hawaii, and AL CUMMINGS, in his Official Capacity as the State Sheriff Division Administrator, TRIAL: July 23, 2019 Defendants. 753239_1 Exhibit "A" (11 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT DocumentID: 4112059196, DktEntry: Filed 12/17/18 Page2-2,2 Page of 3 2PageID of 3 #: 287 STIPULATION TO STAY PROCEEDINGS and ORDER It is hereby stipulated, by and between the parties hereto, through counsel and pursuant to the court’s inherent authority to control proceedings before it, that all proceedings in this case and all pretrial deadlines are stayed and tolled pending adjournment sine die of the 2019 Hawaii State Legislature. If the 2019 Hawaii State Legislature has passed legislation relating to electric guns, then the period of this stay shall be further extended by that period of time provided by law for the governor to act on passed legislation. This stay shall remain in effect until further order of this court, which order may be issued sua sponte, by stipulation, or after consideration of a motion by any party and any opposition thereto. DATED: Honolulu, Hawaii, December 14, 2018. /s/ Alan Alexander Beck ALAN ALEXANDER BECK, ESQ. STEPHEN D. STAMBOULIEH, ESQ. Attorneys for Plaintiff ANDREW NAMIKI ROBERTS __________________________________________________________________ Roberts v. Ballard, et al.; Civil No. 18-00125 HG-KSC; Stipulation to Stay Proceedings and Order 753239_1 2 (12 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT DocumentID: 4112059196, DktEntry: Filed 12/17/18 Page2-2,3 Page of 3 3PageID of 3 #: 288 /s/ John M. Cregor JOHN M. CREGOR, JR. Deputy Attorney General Attorney for Defendants RUSSELL A. SUZUKI and AL CUMMINGS, In Their Official Capacities APPROVED AND SO ORDERED: _____________________________ Kevin S.C. Chang United States Magistrate Judge __________________________________________________________________ Roberts v. Ballard, et al.; Civil No. 18-00125 HG-KSC; Stipulation to Stay Proceedings and Order 753239_1 3 (13 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT DocumentID: 7112059196, DktEntry: Filed 11/26/19 Page2-3,1 Page of 3 1PageID of 3 #: 876 MINUTES CASE NUMBER: CV 18-00125 HG-RT CASE NAME: Andrew Namiki Roberts vs. Russell Suzuki, in his official capacity as the Attorney General of the State of Hawaii; Al Cummings, in his official capacity as the State Sheriff Division Administrator ATTYS FOR PLA: Alan A. Beck, Esquire Stephen D. Stamboulieh, Esquire ATTY FOR DEFT: John M. Cregor, Jr., Esquire AMICUS CURIAE: Pamela W. Bunn, Esquire William James Taylor, Jr., Esquire, participated by telephone JUDGE: Helen Gillmor REPORTER: Debi Read DATE: 11/26/2019 TIME: 10:30am-11:25am COURT ACTION: EP: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 51); DEFENDANTS RUSSELL A. SUZUKI AND AL CUMMINGS' CROSS-CLAIM FOR SUMMARY JUDGMENT (ECF No. 54); and MOTION FOR LEAVE TO FILE BRIEF OF EVERYTOWN FOR GUN SAFETY SUPPORT FUND AS AMICUS CURIAE (ECF No. 62) Discussion held. I. Amicus Curiae Amicus Curiae Everytown For Gun Safety Support Fund filed a pleading entitled, “CONSENT MOTION FOR LEAVE TO FILE BRIEF OF EVERYTOWN FOR GUN SAFETY SUPPORT FUND AS AMICUS CURIAE.” (ECF No. 62). Exhibit "B" 1 (14 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT DocumentID: 7112059196, DktEntry: Filed 11/26/19 Page2-3,2 Page of 3 2PageID of 3 #: 877 Everytown For Gun Safety Support Fund attached a copy of their Proposed Brief to the Motion. (ECF NO. 62-1). Plaintiff Andrew Namiki Roberts does not oppose the Motion For Leave. Defendants Russell Suzuki, in his Official Capacity as the Attorney General of the State of Hawaii, and Al Cummings, in his Official Capacity as the State Sheriff Division Administrator do not oppose the Motion For Leave. CONSENT MOTION FOR LEAVE TO FILE BRIEF OF EVERYTOWN FOR GUN SAFETY SUPPORT FUND AS AMICUS CURIAE (ECF No. 62) is GRANTED. The Brief (ECF No. 62-1) attached to the Motion is deemed filed and is part of the record. II. Proceedings Before This Court Plaintiff filed a Complaint claiming that Hawaii Revised Statutes § 134-1 violates the Second Amendment to the United States Constitution. Haw. Rev. Stat. § 134-1 limits the sale of electric guns in the State of Hawaii. Each Party has filed a Motion for Summary Judgment. (ECF Nos. 51, 54). The Parties’ briefing on their Motions for Summary Judgment has raised the question as to what level of scrutiny applies to a challenge to a statute pursuant to the Second Amendment to the United States Constitution. (Pla.’s Motion at pp. 10-11, ECF No. 51-1; Def.’s Motion at p. 11, ECF No. 54-1). Plaintiff argues both that the Hawaii state law is categorically unconstitutional because it prohibits a class of arms and that strict scrutiny should apply. (Pla.’s Motion at p. 15, ECF No. 51-1). Defendant argues that intermediate scrutiny should apply. (Def.’s Motion at p. 11, ECF No. 54-1). The amicus brief also argues that intermediate scrutiny should apply. (Amicus Brief at p. 12-14, ECF No. 62-1). 2 (15 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT DocumentID: 7112059196, DktEntry: Filed 11/26/19 Page2-3,3 Page of 3 3PageID of 3 #: 878 III. Second Amendment Case Pending Before The United States Supreme Court The United States Supreme Court has granted certiorari in New York State Rifle & Pistol Association, Inc. v. City of New York, 18-280. It is set to hear oral arguments in the case on Monday, December 2, 2019. In the briefing before the Supreme Court, the Parties have raised questions as to the level of scrutiny to apply in cases challenging a statute on grounds that it violates the Second Amendment. Petitioner argues that the Supreme Court should apply “a tripartite binary test with a sliding scale and a reasonable fit” to find that strict scrutiny applies to Second Amendment challenges. (Petitioner’s Brief at pp. 38-40, citing Duncan v. Becerra, 265 F.Supp.3d 1106, 1117 (S.D. Cal 2017), aff’d 742 F.App’x 218 (9th Cir. 2018)). Respondent argues that the Second Circuit Court of Appeals properly applied “means-ends scrutiny” in the case and argues that intermediate scrutiny applies to Second Amendment challenges. (Respondent’s Brief at pp. 36-37, citing District of Columbia v. Heller, 554 U.S. 570, 628-29 (2008)). IV. Stay Proceedings Pending The Supreme Court Decision Pursuant to the issues raised before the United States Supreme Court, the District Court elects to STAY the proceedings in this case pending the decision by the United States Supreme Court in New York State Rifle & Pistol Association, Inc. v. City of New York, 18-280. Within 45 days of the decision by the United States Supreme Court, the Parties may file supplemental briefing concerning the appropriate level of scrutiny to apply to the Plaintiff’s challenge to Hawaii Revised Statutes § 134-1. Submitted by: Shelli Mizukami, Courtroom Manager 3 (16 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT Document ID: 79 12059196, DktEntry: Filed 06/17/20 Page 2-4, Page 1 of 2 1PageID of 2 #: 1028 MINUTE ORDER CASE NUMBER: CV 18-00125 HG-RT CASE NAME: Andrew Namiki Roberts vs. Russell Suzuki, in his official capacity as the Attorney General of the State of Hawaii; Al Cummings, in his official capacity as the State Sheriff Division Administrator ATTYS FOR PLA: Alan A. Beck, Esquire Stephen D. Stamboulieh, Esquire ATTY FOR DEFT: John M. Cregor, Jr., Esquire AMICUS CURIAE Pamela W. Bunn, Esquire EVERYTOWN FOR William James Taylor, Jr., Esquire GUN SAFETY SUPPORT FUND: JUDGE: Helen Gillmor DATE: June 17, 2020 Plaintiff filed a Complaint claiming that Hawaii Revised Statutes § 134-1 violates the Second Amendment to the United States Constitution. Haw. Rev. Stat. § 134-1 limits the sale of electric guns in the State of Hawaii. Each Party has filed a Motion for Summary Judgment. (ECF Nos. 51, 54). The Parties’ briefing on their Motions for Summary Judgment has raised the question as to what level of scrutiny applies to a challenge to a statute pursuant to the Second Amendment to the United States Constitution. (Pla.’s Motion at pp. 10-11, ECF No. 51-1; Def.’s Motion at p. 11, ECF No. 54-1). The question as to what level of scrutiny applies to a challenge to a Hawaii state statute pursuant to the Second Amendment is pending a decision, en banc, before the Ninth Circuit Court of Appeals. The Ninth Circuit Court of Appeals has elected to hear, en Exhibit "C" 1 (17 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT Document ID: 79 12059196, DktEntry: Filed 06/17/20 Page 2-4, Page 2 of 2 2PageID of 2 #: 1029 banc, arguments in Young v. State of Hawaii, No. 12-17808, 915 F.3d 681 (9th Cir. 2019), during the week of September 21, 2020. Pursuant to the issues raised before the Ninth Circuit Court of Appeals, the District Court elects to continue to STAY the proceedings in this case pending the en banc decision by the Ninth Circuit Court of Appeals in Young v. State of Hawaii, No. 12-17808. In addition, the State of Hawaii represents that the Motions may become moot as “[t]here is now pending in the Hawaii State Legislature SB2292 which would repeal the total ban on electric guns and replace it with a regulatory scheme.” (Supplement at p. 3, ECF No. 77). The Court will instruct the Parties how to proceed following the en banc decision by the Ninth Circuit Court of Appeals in Young. Submitted by: Ilene Lee, Courtroom Manager 2 (18 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT Document ID: 80 12059196, DktEntry: Filed 07/20/20 Page 2-5, Page 1 of 3 1PageID of 3 #: 1030 Alan Alexander Beck Law Office of Alan Beck 2692 Harcourt Drive San Diego, CA 92123 (619) 905-9105 Hawaii Bar No. 9145 [email protected] Stephen D. Stamboulieh Stamboulieh Law, PLLC P.O. Box 4008 Madison, MS 39130 (601) 852-3440 [email protected] MS Bar No. 102784 *Admitted Pro Hac Vice Attorneys for Plaintiff ANDREW NAMIKI ROBERTS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ANDREW NAMIKI ROBERTS ) Civil Action No. 1:18-cv-00125-HG-RT ) Plaintiff, ) MOTION TO LIFT STAY; ) MEMORANDUM IN SUPPORT; and v. ) CERTIFICATE OF SERVICE ) RUSSELL SUZUKI, in his Official ) Capacity as the Attorney General ) of the State of Hawaii and AL ) CUMMINGS in his Official Capacity ) as the State Sheriff Division ) Administrator ) JUDGE: Hon. Helen Gillmor ) Defendants. ) TRIAL: Vacated _______________________________) HEARING: November 26, 2019 1 Exhibit "D" (19 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT Document ID: 80 12059196, DktEntry: Filed 07/20/20 Page 2-5, Page 2 of 3 2PageID of 3 #: 1031 PLAINTIFF’S MOTION TO LIFT STAY This Court stayed this matter on June 17, 2020 [ECF # 79] pending the en banc decision of Young v. State of Hawaii, No. 12-17808, 915 F.3d 681 (9th Cir. 2019) and due to the representation made by Defendant’s counsel that “[t]here is now pending in the Hawaii State Legislature SB22921 which would repeal the total ban on electric guns and replace it with a regulatory scheme.” June 17, 2020 Order. The legislature adjourned sine die.2 The legislature has had two attempts now to address the issue in this matter and has failed both times. Mr. Roberts’ rights have been and are continuing to be infringed. This matter has been stayed three times. The first, Mr. Roberts agreed to the stay to allow the legislature to act. The second stay was issued immediately after oral argument pending NYSRPA v. NYC, 140 S.Ct. 1525 (2020) in the Supreme Court which was subsequently mooted. The third stay was put in place pending Young, supra. Because the Hawaii legislature will not correct this issue, it is incumbent upon the Court to issue its ruling. 1 This is the incorrect bill number. The referenced bill deals with tax credits. The bill at issue was HB 2292: https://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=HB&billnumber=22 92&year=2020. 2 See https://www.capitol.hawaii.gov/legcal.aspx. 2 (20 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT Document ID: 80 12059196, DktEntry: Filed 07/20/20 Page 2-5, Page 3 of 3 3PageID of 3 #: 1032 This motion is made following the conference of counsel pursuant to LR7.8 which took place on July 13, 2020. Counsel for Defendants stated that they would not oppose the relief requested in this motion. Wherefore, premises considered, for reasons set forth here and in Plaintiff’s Memorandum in Support, Plaintiff requests that the stay be lifted and the Court to rule on Plaintiff’s Motion for Summary Judgment [ECF # 51]. Dated: Canton, Mississippi, July 20, 2020. Respectfully submitted, /s/ Alan Beck Alan Alexander Beck /s/ Stephen D. Stamboulieh Stephen D. Stamboulieh Stamboulieh Law, PLLC *Admitted Pro Hac Vice 3 (21 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT Document ID: 84 12059196, DktEntry: Filed 03/24/21 Page 2-6, Page 1 of 2 1PageID of 5 #: 1048 Alan Alexander Beck Law Office of Alan Beck 2692 Harcourt Drive San Diego, CA 92123 (619) 905-9105 Hawaii Bar No. 9145 [email protected] Stephen D. Stamboulieh Stamboulieh Law, PLLC P.O. Box 428 Olive Branch, MS 38654 (601) 852-3440 [email protected] MS Bar No. 102784 *Admitted Pro Hac Vice Attorneys for Plaintiff ANDREW NAMIKI ROBERTS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ANDREW NAMIKI ROBERTS ) Civil Action No. 1:18-cv-00125-HG-RT ) Plaintiff, ) MOTION TO LIFT STAY AND ) RE-URGE SUMMARY JUDGMENT; and v. ) CERTIFICATE OF SERVICE ) RUSSELL SUZUKI, in his Official ) Capacity as the Attorney General ) of the State of Hawaii and AL ) CUMMINGS in his Official Capacity ) as the State Sheriff Division ) Administrator ) JUDGE: Hon. Helen Gillmor ) Defendants. ) TRIAL: Vacated _______________________________) HEARING: November 26, 2019 1 Exhibit "E" (22 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT Document ID: 84 12059196, DktEntry: Filed 03/24/21 Page 2-6, Page 2 of 2 2PageID of 5 #: 1049 PLAINTIFF’S MOTION TO LIFT STAY AND RE-URGE SUMMARY JUDGMENT This Court stayed this matter on June 17, 2020 [ECF # 79] pending the en banc decision of Young v. State of Hawaii, No. 12-17808, 915 F.3d 681 (9th Cir. 2019). That opinion has now been filed by the Ninth Circuit. Pursuant to this Court’s Text Order ECF# 72, “counsel may re-file the cover sheet of the motions to have it considered by the Court.” As such, Plaintiff files his Motion to Lift the Stay and re-urges his Motion for Summary Judgment. Wherefore, premises considered, Plaintiff requests that the stay be lifted and the Court to rule on Plaintiff’s Motion for Summary Judgment [ECF # 51]. Dated: March 24, 2021. Respectfully submitted, /s/ Alan Beck Alan Alexander Beck /s/ Stephen D. Stamboulieh Stephen D. Stamboulieh Stamboulieh Law, PLLC *Admitted Pro Hac Vice 2 (23 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT ID: 12059196, Document 84-1 DktEntry: Filed 03/24/21 2-6,1Page Page of 2 3 PageID of 5 #: 1050 Alan Alexander Beck Law Office of Alan Beck 2692 Harcourt Drive San Diego, CA 92123 (619) 905-9105 Hawaii Bar No. 9145 [email protected] Stephen D. Stamboulieh Stamboulieh Law, PLLC P.O. Box 428 Olive Branch, MS 38654 (601) 852-3440 [email protected] MS Bar No. 102784 *Admitted Pro Hac Vice Attorneys for Plaintiff ANDREW NAMIKI ROBERTS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ANDREW NAMIKI ROBERTS ) Civil Action No. 1:18-cv-00125-HG-RT ) Plaintiff, ) ) v. ) ) RUSSELL SUZUKI, in his Official ) CERTIFICATE OF SERVICE Capacity as the Attorney General ) of the State of Hawaii and AL ) CUMMINGS in his Official Capacity ) as the State Sheriff Division ) Administrator ) JUDGE: Hon. Helen Gillmor ) TRIAL: Vacated Defendants. ) _______________________________) (24 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT ID: 12059196, Document 84-1 DktEntry: Filed 03/24/21 2-6,2Page Page of 2 4 PageID of 5 #: 1051 CERTIFICATE OF SERVICE I hereby certify that on the date noted below, the foregoing document was duly served on the Defendants through this Court’s ECF system, which generated a notice of filing and delivered a copy of the foregoing to all counsel of record. Dated: March 24, 2021. Respectfully submitted, Counsel for Plaintiff /s/ Stephen D. Stamboulieh Stephen D. Stamboulieh Stamboulieh Law, PLLC *Admitted Pro Hac Vice 2 (25 of 27) Case Case: 21-15562, 03/31/2021, Case1:18-cv-00125-HG-RT 1:18-cv-00125-HG-RT Document ID: 5112059196, Document84-2 DktEntry: Filed 08/02/19 Filed 03/24/21 2-6,11Page Page Page of 21 5PageID of of 5 PageID #: 310 #: 1052 Alan Alexander Beck Law Office of Alan Beck 2692 Harcourt Drive San Diego, CA 92123 (619) 905-9105 Hawaii Bar No. 9145 [email protected] Stephen D. Stamboulieh Stamboulieh Law, PLLC P.O. Box 4008 Madison, MS 39130 (601) 852-3440 [email protected] MS Bar No. 102784 *Admitted Pro Hac Vice Attorneys for Plaintiff ANDREW NAMIKI ROBERTS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ANDREW NAMIKI ROBERTS ) Civil Action No. 1:18-cv-00125-HG-RT ) ) PLAINTIFF’S MOTION FOR ) SUMMARY JUDGMENT; Plaintiff, ) MEMORANDUM IN SUPPORT OF ) MOTION; CERTIFICATE OF SERVICE v. ) ) RUSSELL SUZUKI, in his ) Official Capacity as the Attorney ) General of the State of Hawaii and ) AL CUMMINGS in his Official ) Capacity as the State Sheriff ) Division Administrator ) ) Defendants. ) TRIAL: April 28, 2020 – 9:00 AM ____________________________) (26 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT Document ID: 85 12059196, DktEntry: Filed 03/25/21 Page 2-7, Page 1 of 2 1PageID of 2 #: 1053 MINUTE ORDER CASE NUMBER: CV 18-00125 HG-RT CASE NAME: Andrew Namiki Roberts vs. Clare Connors, in her official capacity as the Attorney General of the State of Hawaii; Al Cummings, in his official capacity as the State Sheriff Division Administrator ATTYS FOR PLA: Alan A. Beck, Esquire Stephen D. Stamboulieh, Esquire ATTY FOR John M. Cregor, Jr., Esquire DEFTS: AMICUS CURIAE Pamela W. Bunn, Esquire EVERYTOWN FOR William James Taylor, Jr., Esquire GUN SAFETY SUPPORT FUND: JUDGE: Helen Gillmor DATE: March 25, 2021 On March 24, 2021, Plaintiff’s attorneys Mr. Beck and co- counsel Mr. Stamboulieh filed: MOTION TO LIFT STAY AND RE-URGE SUMMARY JUDGMENT. (ECF No. 84). On August 14, 2020, the Court stayed proceedings in this case and issued a Minute Order stating: The Court will instruct the Parties how to proceed following the en banc decision by the Ninth Circuit Court of Appeals in Young v. State of Hawaii, 12-17808, scheduled for hearing during the week of September 21, 2020. (ECF No. 82). On March 24, 2021, the Ninth Circuit Court of Appeals issued its en banc decision in Young v. State of Hawaii, 12-17808. The mandate has not yet issued. Exhibit "F" 1 (27 of 27) Case: 21-15562, 03/31/2021, Case 1:18-cv-00125-HG-RT Document ID: 85 12059196, DktEntry: Filed 03/25/21 Page 2-7, Page 2 of 2 2PageID of 2 #: 1054 The Court will not act until the Young proceedings have concluded. On March 24, 2021, the Honolulu Star-Advertiser reported that Attorney Alan Beck, who is Plaintiff’s counsel in Young and is also Plaintiff’s counsel here for Mr. Roberts, stated he will ask the United States Supreme Court to review the Young decision, asserting “We are hopeful the Supreme Court will grant review in Mr. Young’s case.” (Associated Press, Ruling Upholds Hawaii’s Limits On Carrying Guns In Public, Honolulu Star-Advertiser (Mar. 24, 2021) https://www. staradvertiser.com/2021/03/24/breaking-news/ruling-upholds- hawaiis-limits-on-carrying-guns-in-public/) (last visited March 25, 2021). Plaintiff’s MOTION TO LIFT STAY (ECF No. 84) is DENIED. Submitted by: Rachel Sharpe, Courtroom Manager 2